tv [untitled] April 4, 2014 7:00pm-7:31pm PDT
our pharmacies into a new space. we were issued a building permit on 01-13 of this year for the rela relocation of our space after we were notified by the planning department that they had issued the department in error and were requiring us to go through the conditional use permit. we're objecting on both ground for the following reasons. first hf made all dis/kwhroerb disclosures engaged contractors and began construction. the department is stopped from halting construction and required a cua when a previously authorized permit and halting construction would damage hf financially. secondly the pharmacy that we
intends to build on the site is less than 2000 square feet and thus, conditional use authorization we feel should not be required. thirdly, neither hf's proposed clinic or pharmacy are formula retail. they're all unique in appearance, carry different merchandise and does not therefore meet the criteria for formula retail. moving on, we've already invested over $200,000 by paying the contractor and we're required to pay another $150,000 at the end of the month. that doesn't include the cost to bring them back out and finish the project when we go through the conditional use process. our first ground for the appeal
is we trusted the planning department to issue the proper permit, engaged the contractor, begin the construction and then we're told that we could not continue construction and had to go through a separate process that we were told earlier we did not have to go through. and we have submitted our conditional use application as well as the permit application to build out just the pharmacy for the existing retail that it's already approved for. and so -- and then thirdly, as i've already stated, we do not fit the formula retail criteria. i've completed and signed an affidavit that we submitted with our conditional use application to the planning department. so the reason that i'm here is to ask that the permit be reinstated so that we can continue construction at least
on the pharmacy portion of our project and allow us to stop paying rent on three spaces instead of one. >> are you finished? >> i'm finished. >> what is the square footage of the clinic? >> the clinic square footage is going to be 2100 square feet. >> you indicate in your brief that the pharmacy is around 30 something. -- 13 something. >> pharmacy is less than that. >> how many facilities do you have around? >> in the country? we have 38 healthcare centers around the country and numerous other businesses as well so we have quite a few locations throughout the countriment some of them are build out as what we call all in one so there's a resale space and pharmacy and healthcare center. some are stand alone. >> thank you.
>> thank you. is there anyone here from the subject property owner? i don't believe so? okay, so mr. sanchez. >> am i missing the brief from the zoning department? >> no. they did not submit a brief. it was just simply the suspension request. regrettably in this matter the department did error in approving the building permit application. unlike the previous case i don't see any evidence of misrepresentation. it was a mistake on two counts. first under the planning section in the castro commercial district you need a conditional use for that change of use. in this case the previous use was retail and as has already
been noted by the project sponsor, they're proposed a medical office at the rear, which is a unique situation. the medical office is at the rear and is accessed through the pharmacy at the front, but in any event, a conditional lease authorization would be in the castro neighborhood district and north beach where there are tighter controls on use sizes and larger use sizes. the second error was in regards to department of retail use and they were focusing on the medical office portion of this and did not at the time put this together as a possible formula use for the pharmacy because medical services are not subject to formal use control, but pharmacies would be. and in the case of this being a formula retail use, i would
argue they are under the criteria, it's two or more of the following criteria and we've gone through this numerous times before, but the merchandise, service mark, color scheme, facade, uniform apparel or signage and arguments could be made for more than two of these, but i think it 's clear they have a service mark that was referenced at one point in the /aeu /pel hasn't's brief and they also do have uniform signage, which is also demonstrated in their brief. so we have the low go here, the location in florida.
the same signage logo and that is in ohio. that's the former mom's pharmacy, which is the former hf on 18th street, church street . and even color scheme who in this case shared the color scheme can out of the closet, but it's clear that the signage, -- this is a similar color scheme, but i think you can stop at two and the signage and the service mark are very clear.
the permit was issued in error. we, you know, probably just a few days after that or maybe the next day they started construction we receive d a complaint, we investigated this and issued the suspension within the 15 day appeal period. again, regrettably we did make an error in this case, however, this is a process by which they can seek to locate here. they have already filed a conditional use authorization and they can pursue the project that they have in this building permit through the conditional use process. so with that, i am available for any questions. >> just to clarify, so there's two bases on which they would have needed conditional use -- the change in use and the formula /rae tail. >> that's correct.
>> mr. sanchez, /aeu this applies to the clinic office on the ground floor as a change from retail. >> correct, so -- >> the farm /s*eu. >> so the pharmacy would still be considered a retail use under the planning code. >> what happens if the 2100 square feet they have became 1998? >> then they would be down to just one conditional use for the formula retail. >> for the formula -- well, your suspension said may consider. >> yeah. >> didn't say you would -- into that or -- >> i think based upon the evidence submitted and their brief, we do believe that it is a pharmaceutical use. >> did you gather any of your own evidence or just -- >> there's also review of the website, they list the number
of locations, use google street view to look at those locations as well. >> that's not in the record. >> no, you're correct. that would just be information they've submitted about their signage. >> i'm confused about the threshold, which is what commissioner fung was going at. i didn't follow. the pharmacy is, did you say 1900? >> no. >> the pharmacy's 1300 and something square feet. >> i think -- >> that's not a change of use, is what i was getting at. >> see, i'm confused because i don't have any -- >> i think you're saying if any part -- this is where i'm stuck too because the appellant's saying that the entire 2,000 square feet has to be medical office for the conditional use to apply.
you're saying if any part of the entire 2,000 square feet of a change of use -- that doesn't make sense. >> it's required on two counts. >> putting aside the formula retail use. >> the castro street neighborhood district a conditional use is required for any use larger than 2,000 square feet. >> right, but the medical office is only 800 square feet. >> no. the medical office is 21 and on top of that there's another 1300. >> oh, okay. >> yeah. so the proposal is -- >> i thought it was 2100 total too. >> 2100 of office and 1390 square feet of retail so it's -- >> got it. >> less than 4,000 square feet total. >> okay. so the 2100 part -- can you say that again? >> sure. so they currently have 2100
square feet proposed of -- >> and that's the problematic piece. >> for that conditional -- >> take that out and you have the pharmacy. then your concern is the formula retail. >> yeah, so the formula retail aside, the provisions for castro street neighborhood district are very unique and only like north beach and the idea is that if there is a change of use in a space that is larger than 2,000 square feet, that needs to go to the commission. i think the overall idea of this is that they want to try to ensure there is proper view of these larger spaces. >> the whole thing was a pharmacy -- >> then it would not trigger this. >> okay. so the change of use and the threshold is connected to the the 2,000 square feet.
>> yeah. >> formula retail, let's go there. >> before you do, can i clarify? >> yeah, sure. >> the 2,000 square feet triggers the conditional you. >> change of use. >> regardless of what ultimate portion of that goes to the different usage? that's why i'm confused about the 2,000. is that the threshold for the original floor plan versus what might go in. in other words, let me try this. if they went and made their medical office building 1900 square feet out of the total would that -- >> i mean, in this case it's a little unique because the medical office says through the pharmacy so if this was a large space that they were simply dividing up into two clear uses, each less than 2,000 square feet, that's great. that's one of the goals of the
zoning is to try to encourage there to be smaller scale retail uses in the neighborhood commercial district. that's the reason this unique provision is there. the space is t shaped so it's narrow at the front, widens as the rear. the medical offices would be at the rear and the pharmacy would be located in the narrow portion at the front so you can't actually access the medical offices without walking through the pharmacy space. i think it's a fine question here about -- even if they change the medical office to be less than 2,000 square feet, they're still having an entire use size is greater than 2,000 square feet. does that trigger conditional use? there's probably a reasonable argument for it either way. that's where we are.
and we just evaluated the proposal which is 2100 square feet and be it needs a cu. >> i think i understand the change of use part of the analysis. that only goes to the form say portion; is that correct? >> correct. >> so i any you said they already have a conditional use permit pending. >> they have an application filed, correct. >> for what. >> for the use size. i don't -- they're still maintaining that they're not subject to formula resale use controls. the use size was submitted for the medical office. >> so there's the concession there? all right. an application is filed and we can process that.
>> we'll move right into rebuttal. you'll have three minutes. >> first i want to say i appreciate the complex nature of the castro and its unique. it's also important when permits are issued they're issued properly because we were given -- and we asked about the conditional use requirement specifically and were told no so at this point, you know, i'm basically stuck with a project that's half filled and patients who are expecting to receive care there, contractor that's been paid and still no complete project so, you know, i'm mostly looking for a forward motion here so we can get some resolution and figure out what
we need to do. that's all i have. >> can we go back to -- was there discussion related to formula retail? >> no. there was no discussion related to formula retail. >> it probably never even occurred to them in that point of time ? >> no. >> in regard to formula retail, yeah, our pharmacy logo has ha logo, but the building colors are different, some are built into out of the closet are pink or yellow or blue, but there's
no set standard for building colors or facades or uniforms, etc. >> sometimes the planning department needs to go through their analysis when there is an excess of the threshold is 10? >> eleven. >> how could i forget. >> mr. sanchez, anything? >> thank you, scott sanchez again. we deeply regret making the mistake and it's the last thing i want to do is have to suspend a permit that someone sought in good faith. i'd much rather suspend a permit that someone lied about. again, there's no indication that there was any doubt there in this case. it was simply anner report that our staff made that's been recognized now and it was in response to a complaint that we suspended the permit and, you
know, i would commit to doing our best to expedite the application that's already been filed through the conditional use process at the planning commission. the planner who's handling that is relatively new, may not have a completely full workload yet so i can work with her supervisor and director to ensure we get this processed as timely as possible. >> how long of a process are we talking about here? >> i mean, i think once the -- you know, assuming the board makes a decision tonight to up hold the suspension, then we'd ask for additional materials related to the cu authorization and would look to get it calendared on a hearing date, you know, potential lyly early may at the earliest, at this point. we have a 20 day notice period so need to make sure that's complied with. >> i assume they could merge the issue of formula retail
into the existing application. >> yes. >> do you have any sense of how this might go? >> no. i do not. i mean, i -- you know -- >> i guess in part this is somewhat new, the zoning for the -- >> i think there was a come plaint made about this means there may be some concern about this in the community, but i'm assuming there was a neighborhood notice sent for this appeal. >> there are quite a few people who felt that certain ncd's were better served by much smaller retail establishments. >> and they are relocated. i believe it's been said they're relocated an existing
facility so it's not a new presence. i mean, there are other locations so, you know, that would be something that would be considered by the planning commission as well. >> this is not an mcd, right? >> no, this is not. >> neighborhood commercial. >> i heard m also. >> neighborhood commercial. >> maybe i'm slurring it. thank you. i had a question for the appellant. could your clinic be less than 2,000 square feet? >> yes. >> which component is more important to you?
the pharmacy or clinic? >> that's a tough call because the pharmacy generates a ref revenue that pays for the patients who come into the clinic. >> understand. >> i would have to say the clinic is more important. >> you may -- i think in the long term, you would want to have total clarity in your permit history, okay? >> mm-hm. >> if you could make the clinic less than 2,000 square feet, i would consider a partial granting of the appeal, while you then pursue whatever else you need to do through the planning department. >> nice. >> well, this is another thought maybe. i thought what mr. sanchez was saying if you split them more clearly, the space, then that might avoid -- might be another solution perhaps? >> i would agree, but the way
the space is set up it's nearly impossible. >> maybe your architect can speak to that? >> i didn't realize that if we were shy -- under 2,000 on the medical office that then we wouldn't need a cu. i thought it was the entire space. here's an idea. >> isn't that because of the current con fig race, they're not divisible. >> the medical office has existing restrooms that are going to be shared by the pharmacy. it's over 100 square feet so if we were to count the bathrooms as part of the pharmacy then we -- the medical office would
actually be under 2,000 square feet. >> i was splitting the hair by saying. they recognize they're not two separate spaces. >> okay. >> okay, commissioners, the matter is submitted. >> you know, sometimes sentiments sentiment is one thing, but you need to look at the legal and technical issues here. za has requested and were granted a suspension of a building permit.
to change that we have to find error or abuse. i'll take a shot unless somebody else wants to -- >> no, you. [laughter]. >> i'm going to grant the appeal for the portion that is defined as the clinic and office and find that it was incorrectly determined that it was in excess of 2,000 feet. >> you hear that mr. architect. >> therefore, the suspension on that portion of the work can be
lifted. yes, sir. >> may that because the 2100 square feet included restrooms which were for use for both the pharmacy and /phetd cal office and then that should be contracted from the 2100 square feet? >> exactly my thought. >> okay. >> mine too. >> if i understand what you're saying then, you're still upholding the decision on the farm pharmacy and retail? >> yeah, i don't think i can go that far. >> if you're going to force him into a cu proceeding? >> yes, because it'll change the entire financial on the contractor and bringing his patients in. >> got it. it gives them something, not everything, but something.
it'll still have to take care of some things and i don't want to guess. i guess mr. sanchez would know how i would guess. he's known me too many years. >> i'm wondering if that's feasible as a fast forward, even if partial fast forward /aeu /pel /hrapbtd, appellant. is it? for us to start building out the clinic and hold off on the cu process for the pharmacy. >> i mean, given the space and layout. >> i'm not sure if you saw the plans, the pharmacy /porbgs portion is in front of the -- so it would make -- i'm not sure we could operate the clinic before we have the pharmacy. >> but you could keep working
on it? >> correct, reengage our contract. >> the problem is that sort of the organizational business plan is to have that funding -- the pharmacy funding the clinical work -- >> right, you know, i'm sorry, i didn't mean to interrupt. >> that's okay. >> the pharmacy we have on not even half a block away from the new space so we could service clients out of that pharmacy and see them for healthcare around the corner. >> could put a temporary wall along the counter line to provide your access to the clinic. >> absolutely. >> it's not perfect. >> nope. >> it would be a solution. i appreciate it. >> good job. >> mr. sanchez, do you have anything else? >>
so then the commissioner fung and to repeat it's to overrule the da order in part or reinstating the permit as to the scope for construction of the medical office with the finding that the za ere errored. >> they were inappropriately included in the calculations. >> inaccurately, inappropriately? >> inaccurately. inaccurately included in the pharmacy's calculation's. >> in the medical office calculations. >> on that motion overrule in part and to reinstate with that
finding, commissioner hwang. >> i. >> vice president hurtado. >> i. >> president lazarus. >> i. >> commissioner honda. >> i. >> the vote is five to zero, the zoning administrator is overruled in part, thank you. >> no further business. president lazarus, meeting is adjourned. (clapping) >> so thank you all for coming out this morning, i'm edward reiskin i'm the director of transportation here in san francisco. happy to see you all here we're